The Supreme Fillibuster

When Justice Antonin Scalia died, Senate Republicans announced that they would not hold hearings because of their belief — not supported by any precedent — that a lame duck president should not get to fill a vacancy during his last year in office. Earlier this week, in a classic gaffe (i.e. he mistakenly told the truth), Senator John McCain announced that Senate Republicans intend to block any nominee that President Hillary Clinton might put forward. While Senator McCain has attempted to walk back this statement, he revealed what many of us have known to be true all along — the Republicans do not have any problem with any specific nominee that President Obama has or that President Clinton might put forward; there problem is with losing the majority on the Supreme Court.

If the Republicans can keep their current Senate majority, the process of blocking all nominees is simple — although with potential political consequences. They simply vote down any nominee. Their problem is if, as current polls suggest, the Democrats regain the Senate majority for the next two years. If that happens, we are potentially looking at the next conflict over the filibuster.

As long time readers of this site may recall, the filibuster is not established by the United States Constitution. Instead, the Constitution allows the Senate (and also the House) to establish the procedural rules governing Senate operations. Currently, under Rule XXII of the Senate, it takes sixty votes to invoke cloture to force a vote on the merits. There are some rules of the Senate that can be interpreted as requiring a “standing filibuster” as used to be the custom, but the current practice in the Senate is to put the burden on those who wish to proceed with Senate business rather than those who wish to block Senate business.

In recent years, the filibuster has been used to block presidential appointments — both to the executive branch and to the judicial branch. Before 2000, a filibuster was a rare occurrence. The only Supreme Court nominee to fail due to a filibuster was Abe Fortas (who barely got a majority for cloture and probably would not have gotten a majority on confirmation). During the George Bush presidency, Senate Democrats used the filibuster to block a handful of extreme conservative judicial nominee while allowing most nominees to proceed to a floor vote. After Barack Obama won in 2008, however, the filibuster became more of the norm for both judicial nominees and executive branch appointees (as well as most legislation).

In November 2013, Senate Democrats abolished the filibuster for executive branch nominees and judicial nominees for all courts but the Supreme Court. Assuming a President Clinton and a democratic majority in the Senate, the stage may be set for a showdown over the use of the filibuster on a Supreme Court nominee.

Obviously, abolishing the filibuster is not without risk. The Republican Party will not be insane forever (or at least hopefully not forever). There will come a time when a Republican president will have a Republican-controlled Senate and want to nominate an extreme Supreme Court justice. At that point, the filibuster would be a valuable tool to have.

More significantly, pushing the change through over Republican opposition could be politically risky. If seen as a power grab, it could make things even more difficult in the 2018 elections — which are already likely to be difficult. In terms of strategy, it might make sense to call the Republican bluff by nominating a moderate candidate (similar to Merrick Garland first). If the Republicans block this candidate by the filibuster, President Clinton could then nominate a more progressive candidate and — when the Republicans block the second nominee by a second filibuster — the Senate Democrats could justify changing the rule by arguing that the Republicans have revealed their true plan — to block all nominees until 2020.

Of course, any Democratic plans regarding changes to the filibuster rule depends on first winning the presidency and control of the Senate. While president is looking good, the Senate is still a very close contest. Winning the Senate will require all hands on deck working to win elections in Arizona, Florida, Indiana, Missouri, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin.